The relationship between free speech and civic education takes center-stage in what follows, with emphasis on the importance of trying to bring a certain kind of person into being, namely an autonomous one. A good democratic citizen will have adequate critical thinking skills, be open-minded, listen, and interact with those with whom they disagree in a manner that treats everyone as an equal member of the diverse political community.

The exercise of free speech rights by students, in public fora at their respective public schools, can make them more accustomed to the inevitably of disagreement. That way, they can learn how to disagree with others, who do not share their deepest political convictions, without necessarily concluding that they are stupid or evil. In conjunction with democratic education as part of the curriculum, they must be actively involved in educating themselves. No one can do it for them.

The practice of free speech can contribute to the development of critical thinking skills improve their ability to deliberate in the future. Long before they become adults, they should be able to take part in discursive activities so that they are familiar with how deliberation in a democracy is supposed to work. There is plenty of room for improvement. Like any other capacity, an intellectual capacity can be cultivated over time, with positive reinforcement and the appropriate educational experiences. There is no reason why some of those formative educational experiences cannot take place during junior high or high school when students interact with one another outside of class.

Americans suffer from high levels of political ignorance, coupled with poor critical thinking skills. Without competence, most people will end up making worse personal and political decisions. Democratic citizens must be able to evaluate evidence, judge the quality of political arguments and candidates for public office, assess public policy proposals, and not behave in ways that undermine the norms of their own democratic culture. For these reasons, students must practice dealing with such situations on their own, long before the stakes are much higher, without the expectation that adults constantly will intervene.

Students who begin to work on their critical thinking skills at an early age are more likely to develop a willingness to challenge authority and demand reasons from those who exercise it over them. They will not improve their critical thinking skills if they do not work on them continuously because they fear the consequences of trying to think more independently, making mistakes, or offending others. That process includes being more skeptical of authority figures, including teachers and administrators, and not caving into peer pressure (which is admittedly quite difficult during adolescence and even worse due to the ubiquity of social media). Reasons are not supposed to be good or compelling because they come from a teacher, administrator, or another authority figure in a hierarchical system.

It is a mistake to wait too long for students to have such an educational experience or believe that it will happen on its own. By college, they probably have picked up many bad habits. By age twelve or thirteen, most students are mature enough not to have school officials treat them so paternalistically when it comes to what they may say or write, thereby giving them the responsibility to decide whether they want to contribute to the marketplace of ideas at their school. Whatever else might be said about this educational approach, it is counterintuitive to assume that a regime of censorship would facilitate the development of critical thinking skills when so many learning opportunities are lost, coupled with the possibility that students are learning the wrong lessons about free speech.

Before they become adults, adolescents must learn that all of us are fallible and become more self-aware. After all, it is possible that they are wrong about this or that, irrespective of how sure they are or how strongly they feel that they are right. In the classroom, research shows that consideration of the question, "Could I be wrong?" has civic educational value. Less certainty about the correct answer (and less intellectual arrogance more generally) can prompt a student to question other beliefs and become curious about whether they, too, might be wrong or their beliefs lack evidentiary support. The first step towards being less dogmatic is to recognize how much you do not know.

Those who are exposed to speech, which they disagree with, may have their preconceptions called into question (which can be unsettling, of course, but ultimately for the best in the long run). Educationally, this experience supplements what students ought to be learning in the classroom. Exposure to all kinds of difference and disagreement must take place as soon as possible in a world where too many Americans live in echo chambers when it comes to news (and social media) and are vulnerable to confirmation bias. That does not imply that students who actually are wrong will immediately change their minds, see the error of their ways, or have sophisticated understandings of the views that they reject (yet that may come with time). That way, even amid intractable disagreement, people can become more inclined to see one another as fellow members of the political community whose autonomy must be respected, regardless of the merits of their views.

The approach of educators must be hands-off so that student speech is student-initiated, prompting students to become more actively engaged in the civic educational process. It is even more imperative for them to do so when lawmakers and school board officials have partisan agendas, trying to score points with their constituents by either making a school as woke or anti-woke as possible. The role of school authorities should be to facilitate such speech so that teenagers can begin to express their own ideas, learning to think for themselves and take responsibility for what they say or write. Above all, that objective means that students should not be pressured into remaining silent for fear of being punished when they are experimenting with the exercise of their free speech rights at school.

The threat of being punished for expression chills speech, condones indoctrination, and imparts the wrong lesson about free speech: it is permissible for those in power to stifle dissent, shut down criticism of the school, or squash unpopular ideas by suspending or expelling students for expressing themselves. In terms of the importance of free speech more generally, an enormous amount of damage can be done when students, who are young and impressionable, observe how adults, who exercise considerable authority over them at school, use that authority inappropriately.

Learning requires a certain sort of predisposition, one that makes room for the possibility that you may not be as informed as you think you are and thus, you might want to remain agnostic for the time being. The moment that you recognize that your judgment is much more fallible than you wish it were, you are more likely to be more charitable to others. A reasonable person can acknowledge that the evidentiary support for her view may turn out to be weaker than she initially thought it was. Many people have gone through the experience of looking back on their lives and wondering how they possibly could have believed something, with conviction, that they now know was obviously false or terribly wrong. For these reasons, the exercise of free speech rights can be educational.

Education is not supposed to be about intellectual comfort. Students should begin to have such experiences long before they are eighteen years old. By that time, many of them will have developed bad intellectual habits and attitudes. That is why it sooner rather than later junior high and high school students to be prompted to share their own views, no matter how underdeveloped they may be, long before some of them set foot on a college campus. This approach would also inculcate in them the idea that learning is not about memorization or having a teacher tell them what the right answers are. As Mill maintained, everyone must go through the mental exercise of figuring out for themselves what is true and what is false. The exercise of free speech in public schools is one way for students to become more intellectually independent over time, as both a person and a citizen in a democracy.

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Alliance Defending Freedom is seeking Senior Counsel with 10+ years of experience to join our Center for Life and Center for Parental Rights teams. ADF is the largest religious liberty law firm in the world, with 18 Supreme Court wins since 2011 and a growing team of attorneys committed to defending free speech, religious freedom, parental rights, and the sanctity of life. Experienced litigators seeking high-impact, meaningful work should consider applying. Please apply here or reach out to Katie Garrard, Lead Recruiter, kgarrard@adflegal.org.

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Yet, judges seem to forget their role. The Fourth Circuit, in particular, has been summarily reversed twice in one term for violating the party presentation principle. In November, the Supreme Court SumRev'd the Fourth Circuit in Clark v. Sweeney You might think the judges in Richmond would take a hint, but no such luck. Yesterday, the Supreme Court summarily reversed the en banc Fourth Circuit in Margolin v. National Association of Immigration Judges. I wrote about this case back in December.

The Court explained that the party presentation principle prevents judges from becoming inquisitors:

Federal courts adhere to the principle of party presentation. See Clark v. Sweeney, 607 U. S. 7, 9–10 (2025) (per curiam). That principle—the "rule that points not argued will not be considered"—distinguishes our adversarial system of justice from an inquisitorial one. United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). Because courts are "essentially passive instruments of government," we rely on the parties to "frame the issues for decision" and decide "only the questions presented." United States v. Sineneng-Smith, 590 U. S. 371, 375–376 (2020) (internal quotation marks omitted).

The Court explained that it had to reverse the Fourth Circuit on this principle only a few months ago:

We recently reversed the Fourth Circuit for violating this party-presentation principle.

What happened here? The Fourth Circuit remanded the case on an issue that none of the parties had presented:

The Fourth Circuit violated the party-presentation principle when it decided "a case different from the one [respondent] advanced." 160 F. 4th, at 118 (Quattlebaum, J., dissenting from denial of rehearing en banc). As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB. ECF Doc. 72, pp. 8–9; ECF Doc. 11–1, p. 18. The parties thus confined their arguments to the narrow question whether respondent's claims were, in fact, covered. Unsatisfied with rejecting respondent's arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent's argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.See Clark, 607 U. S., at 9. That "'drasti[c]'" departure from the principle of party presentation "'constitute[d] an abuse of discretion.'" Id., at 10 (quoting Sineneng-Smith, 590 U. S., at 375).

The Court concluded:

The Court of Appeals lost sight of those principles here.

Why did the Fourth Circuit lose sight? Justice Thomas explains why in his concurrence, joined by Justice Barrett.

Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its "black robes to insulate[it] from taking notice of items in the public record." Id., at 313. Specifically, the Fourth Circuit worried that because "the President removed the Special Counsel" and "two members of the MSPB," there were now "serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended." Id., at 305. Congress designed theCSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that "the Government has questioned the constitutionality of the removal protections enshrined in the CSRA," it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress might not have intended for such claims to be channeled to the MSPB any longer.

Lower court judges consistently take judicial notice of what President Trump does, and uses those actions to change the meaning of the law. As Judge Wynn said in the travel ban case nearly a decade ago, "Do we just ignore reality and look at the legality?" Justice Thomas shoots down this amateur political analysis:

The Fourth Circuit's analysis bears little resemblance tolegal interpretation. Neither the President's view that he can remove federal executive officials, see Myers v. United States, 272 U. S. 52 (1926), nor his having done so, change the meaning of the statute or the binding nature of this Court's interpretation of it. "Conditions may have changed, but the statute has not." United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). Courts may not "rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that" the President or courts may conclude that its removal restrictions were "beyond its authority." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 76 (1996). Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress's purposes. See U. S. Const., Art. I, §§1, 7. As Judge Quattlebaum wrote in dissent, the Fourth Circuit's decision below "undermines important principles of our system of justice," including that law remains law despite the "political controversies of the day." National Assn. of Immigration Judges v. Owen, 160 F. 4th 100, 118 (2025) (en banc).

Justice Barrett rarely joins these sorts of separate writings. She must have been especially troubled by what the en banc Fourth Circuit did here—with good reason.

The Fourth Circuit has a tradition, in which the judges come off the bench after arguments and shake hands with counsel. This tradition should not blur the distinction between those at the bar and those on the bench.

The post SCOTUS Summarily Reverses The "Inquisitorial" Fourth Circuit Twice In One Term appeared first on Reason.com.

Besides the serious First Amendment concerns favoring a broad preemption ruling that would avoid such constitutional problems, the state-law suits in this case and others around the country seek to regulate national and international commerce in violation of the Commerce Clause and related structural constraints on extraterritorial regulation.

Boulder attempts to penalize multinational companies not merely for the local and immediate consequences of any local operations, but for the multi-causal long-term consequences of their sales and speech around the country and around the globe. And it is seeking to impose liability on Suncor for the joint consequences of millions of decisions by actors beyond its borders, operating in interstate and international trade. Whatever reticence this Court might have in preempting largely ordinary State regulation that incidentally affects interstate commerce, that reticence would be misplaced when it comes to such a major encroachment on international commerce and an attempt to impose Boulder's views of nuisance and appropriate speech on actors not just in other States but also in foreign countries.

For good reasons, this Court has understood Congress's delegated power over foreign commerce as exclusive of State powers. That understanding is consistent with the original public meaning of both the delegation of power to Congress in Article I, and the catch-all reservation of powers to the states and the people in the Tenth Amendment.

Regardless whether the Constitution supports the somewhat variable dormant interstate Commerce Clause as it had evolved over the years, a more textually grounded reading of the clause supports exclusive federal authority here. Boulder's attempt to impose Colorado law on interstate and foreign commerce conflicts with the Commerce Clause, Article I's delegation of powers, and the Tenth Amendment. And it more broadly conflicts with the Constitution's structure, which organizes horizontal relations among States on principles of (partial) state autonomy, equality, territoriality, non-aggression, and mutual recognition.

The power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" U.S. Const. art. I, § 8, cl. 3, is one of the "legislative Powers" that the Constitution "grant[s]," and promises will be "vested in[,] a Congress of the United States," U.S. Const. art. I, § 1.

As a textual matter Article I's grant of authority is exclusive. Taking the "words * * * in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged," Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816), any "legislative power" granted "is * * * absolutely vested," id. at 329. And by vesting powers in Congress, the Constitution divested those same powers from the States. As Justice Story explained in Hunter's Lessee, "the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States." Id. at 325 (emphasis added).

The text of the Tenth Amendment confirms this reading, providing that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X (emphasis added). By such wording the Tenth Amendment necessarily recognizes that powers that are delegated to the United States are not "reserved" to the States or the people, but reside solely in the federal government. Congress might exercise its power to seek assistance from, or grant permission for, some state activities properly understood to "regulate" interstate or foreign commerce. But the default rule is the absence of state power to regulate interstate and foreign commerce—not endless state encroachment on delegated national authority unless and until Congress affirmatively says otherwise.

And that is true even though Congress has the undoubted option to affirmatively disable state regulation of extraterritorial commerce. The exercise of national legislative authority was designed to be difficult. Hurdles such as bicameralism, the potential veto, and the volume of matters that compete for Congress's attention slow and often stop such exercise. Default rules are thus important, and the constitutional default for Article I powers is that individual States may not take it upon themselves to exercise powers delegated to Congress. The Constitution sought to free foreign commerce from state mischief, not to preserve all opportunity for such mischief while the national legislative process struggles to keep up.

Consistent with a proper reading of the Constitutional text, this Court's early cases rejected any suggestion that the power to regulate extraterritorial commerce was held concurrently by Congress and the States.

In Gibbons v. Ogden, Daniel Webster argued that it would be "insidious and dangerous" for the States to have a "general concurrent power" with Congress that would allow the States to "do whatever Congress has left undone." 22 U.S. (9 Wheat.) 1, 17-18 (1824). This Court did not need to reach that question in Gibbons, id. at 208-212, but several justices did discuss it in the Passenger Cases, addressing fees imposed by New York on ships carrying people traveling into the State. Smith v. Turner, 48 U.S. (7 How.) 283 (1849) (Passenger Cases). Justice McLean extensively reviewed the various powers delegated to Congress, the necessity of their exclusiveness within the narrow confines of such delegations, and concluded:

Whether I consider the nature and object of the commercial power, the class of powers with which it is placed, the decision of this court in the case of Gibbons v. Ogden, reiterated in Brown v. The State of Maryland, and often re-asserted by Mr. Justice Story, who participated in those decisions, I am brought to the conclusion, that the power "to regulate commerce with foreign nations, and among the several States," by the Constitution, is exclusively vested in Congress.

Id. at 400.

Justice Story, for his part, spoke of one State's "cheerful acquiescence" in the exclusivity of the commerce power, a point he said had not been "seriously controverted." 2 Joseph Story, Commentaries on the Constitution of the United States 515, § 1067 (Bos., Hilliard, Gray & Co. 1833), https://tinyurl.com/ywemmyzh. He explained that the "power to regulate commerce is general and unlimited in its terms" and left "no residuum" to the States. Id. at 513, § 1063. He continued that "when a State proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power, which is granted to congress; and is doing the very thing which congress is authorized to do." Id. at 514, § 1064.

The power to tax, by contrast, is different. Congress originally was empowered to adopt "uniform" taxes "throughout the United States" to pay for distinctly national obligations and activities "of the United States." U.S. Const. art. I, § 8, cl. 1. States may tax only within their jurisdiction and they do so for different ends. "In imposing taxes for state purposes, a state is not doing what congress is empowered to do." 2 Story, supra at 513, § 1064.

Especially in cases involving foreign commerce, this Court has described the commerce power as an exclusive delegation. In Crutcher v. Kentucky, 141 U.S. 47 (1891), this Court explained that the "prerogative, the responsibility, and the duty of providing for the security of the citizens and the people of the United States in relation to foreign corporate bodies or foreign individuals with whom they may have relations of foreign commerce, belong to the government of the United States, and not to the governments of the several states." Id. at 58.

This Court eventually moved away from its earlier understanding as to exclusive federal power over interstate commerce, discovering the very "residuum of power" in the States to act in "the absence of conflicting legislation by Congress," Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945), that Joseph Story rejected in his Commentaries. But this Court nonetheless continued to recognize greater exclusive Congressional authority as to foreign commerce, concluding that the federal "power when exercised in respect of foreign commerce may be broader than when exercised as to interstate commerce." atlan­tic Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932).

In atlantic Cleaners, this Court explained its conclusion that the Commerce Clause could be plenary as to foreign commerce but not as to interstate commerce by noting that "there is no rule of statutory construction" that precluded it from treating the "same word" as though it has "different meanings." Id. at 433.^[1] And indeed there is some "evidence that the Founders intended the scope of the foreign commerce power to be the greater." Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434, 448 (1979).

Even taking those cases rejecting the exclusivity of the interstate commerce power on their own terms, any residuum of power left with the States was limited and would apply only to "matters of local concern" that would "in some measure affect interstate commerce" or "to some extent, regulate it." Southern Pac., 325 U.S. at 767 (collecting cases). For that reason, just over a decade after this Court decided Southern Pacific, it could still say, correctly, that its cases recognized that the "Commerce Clause gives exclusive power to the Congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the States." Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458 (1959) (emphasis added) (citation omitted). In the foreign commerce context, this Court should be even more cautious in permitting direct or indirect burdens on international commerce.

The subsequent tendency to find even more exceptions to interstate commerce exclusivity—adding more judicial policymaking into the mix—was perhaps driven by concerns that an exclusive reading of an ever-expanding commerce power would foreclose too many state laws regulating ordinary local matters that in some way had an effect on interstate commerce. But while such concerns are understandable, they arise from a different error, not from a proper understanding of exclusivity.

Under an original and narrower view of the commerce power (apart from the erroneously expansive gloss of the Necessary and Proper Clause), any problem of excessively disabling state powers would have been limited. Cf. Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 493 (1941) ("On the whole, the evidence supports the view that, as to the restricted field which was deemed at the time to constitute regulation of commerce, the grant of power to the federal government presupposed the withdrawal of authority pari passu from the states."). As Justice Thomas has explained, the "Clause's text, structure, and history all indicate that, at the time of the founding, the term '"commerce" consisted of selling, buying, and bartering, as well as transporting for these purposes.'" Gonzales v. Raich, 545 U.S. 1, 58 (2005) (Thomas, J., dissenting) (quoting United States v. Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring))).

When the commerce power is properly constrained to those activities, any alleged harm from divesting the States of such power is necessarily cabined. "While in its content the commerce clause was designed to include only a limited number of matters, the states could no more legislate with propriety as to subjects falling within its limits than Congress could as to any subjects falling outside them." Abel, supra, 25 Minn. L. Rev. at 494.

Just as this Court has recognized that the vesting of powers in one branch forecloses exercise of or encroachment on such powers by another branch in the context of horizontal separation of powers, so too it should continue to recognize a vertical separation of powers between the federal government and the states, especially concerning the exclusive federal power to regulate foreign commerce. Plaintiffs' attempt to extend their tort laws to encompass extraterritorial conduct and global consequences reaches well into the regulation of foreign commerce that is the exclusive province of the federal government.

 

[1] A genuinely originalist and textualist reading would recognize that the Commerce Clause, at least at its core and not expanded beyond its terms over the years, is exclusive as to interstate commerce as well. But this Court's reluctance to return to the original meaning of the Commerce Clause in the interstate commerce context should not prevent it from maintaining the original meaning of the Clause in the foreign commerce context, consistent with its past precedent in this area.

The post Amicus Brief in <i>Suncor Energy</i> on the Foreign Commerce Clause and Climate Change Lawsuits appeared first on Reason.com.

SUMMARY OF ARGUMENT

Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.

This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.

ARGUMENT

[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.

The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….

[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.

There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participa­t[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresenta­tions do indeed include "participat[ion] in public de­bates" about climate change….

[B.] The First Amendment Protects Speech on Scientific Questions.

The speech over which climate change plaintiffs routinely sue is fully protected by the First Amendment, because it is advocacy on matters of core public concern and public policy.

In United States v. Alvarez, five members of this Court expressly recognized that the government cannot try to "penalize purportedly false speech" on such matters. 567 U.S. 709, 731 (2012) (Breyer, J., concurring in judgment). Justice Alito, joined by Justices Scalia and Thomas, reasoned:

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Id. at 751-752 (Alito, J., dissenting). Justice Breyer, joined by Justice Kagan, expressly echoed this:

As the dissent points out, "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech." Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny.

Id. at 731-732 (Breyer, J., concurring in the judgment). Justice Kennedy's plurality opinion did not discuss this point, but that was likely because the plurality took an even more speech-protective view than did the concurrence and the dissent, see id. at 726-729, and thus saw no need for focusing specially on these categories of speech.

These opinions specifically refer to "the social sciences," but their logic applies equally to other sciences. There too "it is perilous to permit the state to be the arbiter of truth." There too placing public debate at the mercy of federal, state, and county officials, as well as of judges and jurors, "would present a grave and unacceptable danger of suppressing truthful speech." There too the underlying speech is on matters of the most serious "public concern."

Indeed, this Court has long spoken of broad protection for "scientific expression": "[I]n the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Miller v. California, 413 U.S. 15, 22-23 (1973). And that is especially apt in the climate change cases, where the "scientific expression" is intimately tied with "political * * * expression" on difficult public policy questions—such as whether the "downside to [the] consumption [of fossil fuels] is simply outweighed by their utility."

As this Court has recognized in recent years, many questions yield "fierce scientific and policy debates." United States v. Skrmetti, 605 U.S. 495, 525 (2025). See, e.g., Chiles v. Salazar, 146 S. Ct. 1010, 1027-1029 (2026) (discussing both the modern debate about sexual orientation and gender identity conversion therapy, and the past debate about whether homosexuality was a "mental disorder"); Skrmetti, 605 U.S. at 500-505, 523-525 (discussing the debate over youth gender medicine); Roman Cath. Diocese of Brook­lyn v. Cuomo, 592 U.S. 14 (2020) (per curiam) (re­solving the Free Exercise Clause question against the backdrop of the debate over COVID-19 lockdowns). Human nature being what it is, the "fierce[ness]" of the debates may manifest through each side feeling so strongly about its own correctness that it does not believe that there is indeed a genuine debate.

Partisans may be confident that the science is settled in their favor, and that only liars would contest that conclusion. Jurors may take the same view. Especially in relatively ideologically homogeneous communities, such jurors may well form the required supermajority for imposing massive liability on those with whom they disagree. In federal courts, civil juries must at least be unanimous. But most state court systems do not require civil jury unanimity.

Yet the supposed "expert consensus" relied on by decision makers—county officials, judges, jurors, and others—is often illusory. And in any event, that consensus cannot be a substitute for the ongoing process of free discussion that the First Amendment prescribes.

"[T]he American people and their representatives are entitled to disagree with those who hold themselves out as experts" in enacting legislation. Skrmetti, 605 U.S. at 530 (Thomas, J., concurring). And they are likewise entitled to hear from those who disagree with the putative experts. Resolving the policy implications of scientific debates is left "to the people, their elected representatives, and the democratic process." Id. at 525 (majority op.). Challenging the conventional wisdom of the day is often the foundation of political, social, and scientific advances. Indeed, such freedom of speech on all questions, including scientific ones, is what allows "the democratic process" to function.

[C.] The First Amendment Protects Speech on Scientific Questions Touching on One's Business.

Just as the First Amendment protects the right of fossil fuel critics to speak about scientific matters, it protects the same right of fossil fuel defenders, including fossil fuel producers. Whatever the justifications and merits of less rigorous protection for commercial advertising under this Court's jurisprudence, e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65-68 (1983), this Court tolerates such differential treatment precisely because "[a] company has the full panoply of protections available to its direct comments on public issues." Id. at 68.

In Zauderer v. Office of Disciplinary Counsel, this Court concluded that speech about medical matters in a lawyer's commercial advertising was less protected commercial speech in part because "Ohio has placed no general restrictions on appellant's right to publish facts or express opinions regarding Dalkon Shield litigation; Ohio's Disciplinary Rules prevent him only from conveying those facts and opinions in the form of advertisements of his services as an attorney." 471 U.S. 626, 637 n.7 (1985) (quoting the "full panoply of protections available to its direct comments on public issues" statement from Bolger, 463 U.S. at 68). Central Hudson Gas & Electric Corp. v. Public Service Commission likewise distinguished commercial speech from fully protected "direct comments on public issues" by energy companies. 447 U.S. 557, 562 n.5 (1980). Whatever this Court may eventually decide as to reduced protection for commercial speech, any such reduction necessarily depends on businesses retaining the freedom to speak in public debate, even if not in purely commercial advertising.

Indeed, the case that Bolger cited for the "full panoply of protections" proposition—Consolidated Edison Co. v. Public Service Commission of New York, Inc., 447 U.S. 530 (1980)—involved an energy company promoting an environmentally controversial energy source (in that case, nuclear power). See Bolger, 463 U.S. at 68 n.16. And this Court in Consolidated Edison treated such speech as fully protected "participat[ion] in * * * public debate." 447 U.S. at 535.

Furthermore, this Court has long recognized that a company's motivation to protect its own business through its speech does not strip the speech of full protection. "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Pennington, 381 U.S. at 670.

And while private collusion may be regulated under the antitrust laws, that is so precisely because public speech remains fully protected: Even business­es who seek anticompetitive legislation "can, with full antitrust immunity, engage in concerted efforts to influence * * * governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression." Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510 (1988). Likewise, businesses can "present[] and vigorously argu[e] accurate scientific evidence before a nonpartisan private standard-setting body." Id. Businesses can surely do the same before the public more generally.

Speech on public issues, even by companies with an economic interest in the outcome, is protected in large part because speech can be valuable to listeners regardless of the speaker's identity. Corporate speech—which will usually be economically self-interested—is protected "based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 783 (1978).

Listeners need to be able to hear freely from both sides of the debate. Critics of fossil fuel companies speak prominently and freely, without worry of ruinous liability for statements about broad scientific questions, notwithstanding the varied downstream harms that would occur if they were wrong. For the benefit of listeners, fossil fuel companies must be permitted to engage in public debate without fear of liability or double standards. The government "has no * * * authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

Justice Breyer's dissent, joined by Justice O'Connor, in Nike, Inc. v. Kasky, 539 U.S. 654 (2003), supports this as well. Justice Breyer reasoned that Nike's public speech responding to criticisms of its production processes was fully protected, because it "appear[ed] outside a traditional advertising format, such as a brief television or newspaper advertisement" and did "not propose the presentation or sale of a product or any other commercial transaction." Id. at 665 (Breyer, J., dissenting). Nike's speech, Justice Breyer noted, sought "to convey information to 'a diverse audience,' including individuals who have 'a general curiosity about, or genuine interest in,' the public controversy surrounding Nike." Ibid. (citations omitted).

And, most importantly, the content of Nike's speech made "clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail." Ibid.Nike's speech described "Nike's labor practices" and responded "to criticism of those practices," and did so "because those practices themselves play an important role in an existing public debate" "in which participants advocated, or opposed, public collective action." Ibid."The First Amend­ment's protections of speech and press were 'fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes.'" Id. at 677-678 (Breyer, J., dissenting) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). This was said about speech discussing a company's labor practices—and the reasoning applies even more to discussions about some of the weightiest scientific and political issues being debated by Americans today.

For more of Part I, focused on the Petition Clause, expressive association, and compelled speech, see the PDF.

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In my book, in defense of considerably more constitutional protection for student speech, I make an autonomy-enhancing argument, relying not only on the importance of respect for student autonomy on the part of school authorities, implying that in almost all circumstances, students should be able to say what they want to say and how they want to say it, without fear of being punished. I also underscore the extent to which the exercise of free speech rights over time can help students develop their autonomous capacities, as speakers, listeners, and thinkers. That is not to say that other free speech arguments are bad. I just happen to think that an autonomy-enhancing one, coupled with the inability of school officials to censor competently or impartially, is particularly well-suited for the context of secondary education.

Although I'm not a libertarian, I am very libertarian about some things, including free speech. I might be even more of a free speech absolutist than Professor Volokh is (if that is logically possible, ha ha). I detest paternalism, that is, justifications for restrictions on free speech that maintain that not being allowed to speak or be exposed to the ideas of others is for the good of the speaker or the listener. I would prefer to live in a society where normally, lawmakers do not tell people what to do, as if they are wiser or know a person better than that person knows him/herself. I find it arrogant for anyone to assume that they know what is better for me than I do and to think they should be able to use political power to coerce me for my own well-being.

For similar reasons, paternalistic defenses of censorship of student speech do not work. Respect for the autonomy of each student on the part of school authorities requires a very strong presumption in favor of letting students express themselves, even when they express false, offensive, or stupid ideas. By "autonomy," I mean the right to make personal choices about the most important aspects of one's life and to be responsible for the consequences. People are supposed to be persuaded, not manipulated, threatened, or coerced, and that includes giving them access to the information and ideas that enable them to exercise their autonomous capacities. That way, each agent can evaluate, as carefully as possible, the considerations for and against life decisions, especially the most important ones concerning which ends to pursue, how to pursue them, and when (or whether) to revise them.

Simply put, censorship at a public school is incompatible with respect for the autonomy of each student. As a generalization, at my undergraduate institution, I have found Gen Z students to not be independent or resilient. In fact, they do not seem to like trying to figure out things for themselves. Instead, they would rather ask me what to do. I find this trend to be problematic for multiple reasons. When you treat teenage students as children in junior high or high school, including policing their speech, they will act like children. Nobody learns how to become more independent and responsible by being told what to do. Besides, a student speaker is not likely to harm herself by speaking or writing. Nor are those in the intended audience likely to be harmed by exposure to her speech. A "verbal" assault is just a metaphor. Indeed, the opposite is more likely to be true: students will benefit from self-expression and that of others when they are exposed to a variety of ideas, regardless of whether they agree. Restrictions on speech stunt intellectual growth, self-reflection, and the acquisition of knowledge, thereby undermining the development of the autonomous capacities that help to make us who we are.

Paternalism as a justification for censorship at a junior high or high school would be more plausible if very few teenagers were capable of educationally benefiting from the experience of exchanging reasons with their classmates in the public discourse at the school. Even when the average teenager cannot express herself as effectively or thoughtfully as an adult, that is beside the point. The bar should be low, when the goal is gradual improvement, as she learns to form her own ideas and share them with others on campus. One does not deny someone the chance to develop an important skill in life because she lacks it at the outset. As William Glod remarks, "Paternalism frustrates a person's self-development and is thus wrong for that reason."^[1] All teenagers can participate in the marketplace of ideas as their school in one way or another if they choose to do so. After all, there is no such threshold for adults in other circumstances or for undergraduates at a public university. Everyone is allowed to participate in public discourse, regardless of their motivations, intelligence, thoughtfulness, and knowledge.

One can concede an obvious point to critics of more constitutional protection for student speech --that many teenagers are immature and will try out ridiculous ideas—without also accepting the much less defensible conclusion that all students are so immature that none of them should be able to engage in free speech. Whereas we might not want to let a thirteen-year-old vote (or let her parents vote for her), the implication is not that she also should not be able to express herself at her junior high school if she wants to write an editorial in the school newspaper or criticize the principal or a teacher on social media. Between early and late adolescence, students' ability to think improves. Thus, one can surmise that their future selves, when they are older, have a very important interest in being able to think more independently.

Although the exercise of autonomy does not always produce good consequences, including happiness, satisfaction of desires, improved welfare, or emotional well-being, it is still intrinsically valuable insofar as the person who is exercising her autonomous capacities is doing what a human being is meant to do, inasmuch as she conceives of herself as a free and equal being, by using her rational capacities, making decisions, and acting accordingly. My reasons may be hard for you to understand or may turn out to be bad reasons by an objective standard (if there is one when it comes to life decisions not involving facts) yet they are still my reasons. As such, the government should not be vetting them.

Even young children have partial autonomy. Poor choices do not necessarily mean that a teenager lacks such capacities, no more than they do when adults make bad decisions, which is not uncommon. Even when a thirteen-year-old does not have a right to vote, she still should be able to exercise her constitutional right of free speech, grounded in respect for autonomy. In terms of cognitive abilities, by 14/15 at the latest, teenagers are indistinguishable from adults. Like adults, children have degrees of autonomy, and some of them are not only more autonomous than their classmates but are more autonomous than many adults are. Just as it would not make sense to treat a four-year-old as if she were eighteen, it also would make no sense to treat an eighteen-year-old like a four-year-old. Everyone falls somewhere on a continuum provided that they have autonomous capacities. While it may make little sense to assert that preschoolers should have free speech rights, older and more cognitively sophisticated students fall into a different category for free speech purposes. Enough of them can assess the plausibility of claims, compare alternatives, and even call into question a teacher's competence or motivations. In my junior high and high school, I still can recall a fair number of decisions by school officials that did not make sense to me then and still do not make sense to me now, forty years later. Usually, older students find themselves on a different part of the learning curve.

If the exercise of autonomy and the development of autonomous capacities had little to do with speech, communication, and thinking, the constitutional protection of student speech would be less imperative. But that is not the case. From the standpoint of autonomy, it should be assumed that as both speakers/writers and listeners, students should be able to express themselves. People cannot be nearly as autonomous as they could be when they cannot openly communicate with others. As a result, students must have ample opportunity to develop confidence in their own voices, and that requires continual practice. A school, which is an educational institution after all, is an ideal place for students to begin exercising their free speech rights before they become adults.

[1] William Glod, Why It's Okay to Make Bad Choices (Routledge, 2021), 14.

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